70 years after the udhr: a provocative reflection aa agbor

AA AGBOR PER / PELJ 2020 (23) 1

Abstract

The 70th anniversary of the adoption of the Universal Declaration of Human Rights presents an opportunity for critical reflections from the Global South on why the dream of universalising the rights contained in this ground-breaking document is still just a dream. Shaped by a rigorous interrogation of African experiences as narrated by practitioners and scholars, this paper revisits some of the leading contentious issues which, undoubtedly, have impacted on the realisation of the Universal Declaration of Human Rights on the African continent. The paper revisits the issue of meaning, and how uncertainties surrounding it have triggered controversial perceptions and constructions of the notion of human rights, aggravated by adjectival calibrations. Capturing the views of scholars and practitioners, this paper takes an evidence-based approach to the matter as it identifies and discusses some of the common, recurrent challenges that have compromised the aspiration of universalising the ideals articulated in the Universal Declaration of Human Rights. These include, amongst other things, the impact of slavery and the slave trade, colonialism and neo-colonialism, the nature and impact of western hypocrisy, double-standards, bias and inconsistency – factors that not only dilute the recognition of human rights but further deepen the mistrust and misgivings Africans have about human rights. Lastly, the paper appraises the adverse impact of corruption on the realisation of human rights on the African continent. It is argued that all these factors, cumulatively, adversely impact on the perception and realisation of human rights on the African continent.

Keywords

Cultural relativism; colonialism; slavery and the slave trade; African perception and understanding of human rights; western hypocrisy and human rights.

……………………………………………………….

Pioneer in peer-reviewed,

open access online law publications

Author

Avitus A Agbor

Affiliation

North-West University South Africa

Email [email protected]

Date Submission

7 April 2020

Date Revised

25 July 2020

Date Accepted

25 July 2020

Date published

28 August 2020

Editors F Dube & A A Agbor

Agbor A "70 Years after the UDHR:

A Provocative Reflection Shaped

by African Experiences" PER /

PELJ 2020(23) - DOI

http://dx.doi.org/10.17159/1727-

3781/2020/v23i0a8782

Copyright

DOI http://dx.doi.org/10.17159/1727-3781/2020/v23i0a8782

70 Years after the UDHR: A Provocative Reflection

Shaped by African Experiences

AA Agbor* Online ISSN

1727-3781

https://creativecommons.org/licenses/by/4.0/


1 Introduction

In 2018 the global community celebrated the 70th anniversary of the

adoption of the Universal Declaration of Human Rights (hereafter the

UDHR). At the time of its adoption portions of Africa were still under the

yoke of the brutal colonialism which, to some extent, has shaped socio-

economic and political developments on the African continent today.1 The

UDHR was received with mixed feelings in Africa. Its purpose and contents

were thought to be questionable. Given the history of the slave trade and

later of colonialism, the whole human rights movement would face

enormous challenges to its acceptance and implementation. The continent

had undoubtedly known injustices, past, present and continuing. Such

injustices are experienced on many fronts: political, racial, religious, tribal,

and socio-economic. Undeniably, these injustices shape the perception and

reception of human rights as well as their implementation in the challenging

contexts of Africa. Prior to discussing some of these, perhaps it is necessary

to consider some of the contentious ideological issues which have

dominated contemporary human rights discourse, penned mostly by African

scholars, in which they not only articulate their views but also capture the

very fundamental uniqueness of African society which, in their opinion,

cannot be ignored in the context of human rights. One of these issues is the

question of the meaning of human rights.

2 The question of meaning and categorisation

Even though the UDHR initiated the international human rights movement,

Africa would unfortunately not feature as a major player in that development.

The reason is obvious: much of Africa was still under the tutelage of

colonials in 1948. In spite of this, the Preamble to the UN Charter would

"reaffirm faith in fundamental human rights, in the dignity and worth of the

human person, in the equal rights of men and women and of nations large

and small …".2 For the African "people", the end to colonisation required

fierce urgency even though the UDHR stipulated that the rights therein were

available to everyone, with no distinction to be

* Avitus A Agbor. LLB (Hons) (Buea) LLM (Notre Dame, USA) PhD (Wits) Research

Associate Professor, Faculty of Law, North-West University, South Africa. Email: [email protected]. ORCiD: https://orcid.org/0000-0001-9647-4849.

1 Ocheni and Nwankwo 2012 Cross-Cultural Communication 51-53. 2 Preamble to the Charter of the United Nations (1945) (the UN Charter).

mailto:[email protected]

https://orcid.org/0000-0001-9647-4849


… made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.3

The sequel to the UDHR was the right to self-determination, which was

given international recognition in the International Covenants on Civil and

Political Rights (hereafter ICCPR) and Economic, Social and Cultural Rights

(hereafter ICESCR).4 The 1981 African Charter on Human and Peoples'

Rights (hereafter the Banjul Charter) reiterated the burning and immediate

need to liberate colonised peoples as a collective African effort.5

Regardless, the adoption of these international human rights instruments at

the UN were colossal breakthroughs in the progressive recognition of

human rights. Yet over decades scholars have not been able to agree on

an answer to a fundamental question which resides at the centre of the

human rights discourse and movement: what actually is the meaning of

human rights and how does meaning situate in the context of a world in

which the heterogeneity of cultures is an undeniable feature?6 Academics

and practitioners alike have been engaged in debates on this question. But

the intellectual outpourings penned by the different philosophers are not

directed at discrediting the human rights movement. They perceive a grasp

of the meaning as being central to the conversation (if one may use such a

word). In the absence of such an understanding, it becomes a tedious and

pointless task to establish the content of the instruments. If meaning is to

be determined, it is because it defines content, especially in the case of

human rights. In the context of human rights, understanding the meaning of

the term may help in understanding its origin (with specificity), its evolution

and, importantly, the contributions made by the different civilisations. As one

searches of the meaning of human rights, one element features recurrently:

the presence or centrality of human beings. For example, human rights are

defined as the entitlements that a human being has by virtue of being a

human being. If we hold this definition to be true, then some important

questions need to be asked (not probably answered - at least, not now).

Who grants these entitlements? Against whom are these entitlements

3 See A 2 of the Universal Declaration of Human Rights (1948) (the UDHR). 4 See A 1(1) of the International Covenant on Economic, Social and Cultural Rights

(1966) (the ICESCR) and the International Covenant on Civil and Political Rights (1966) (the ICCPR) respectively.

5 Preamble to the African Charter on Human and Peoples' Rights (1981) (the Banjul Charter) paras 4 and 9.

6 This evokes a host of issues, some of which touch on philosophy and the notion of "cultural relativism". On these topics, there is quite an impressive literature penned by scholars: Donnelly 1984 Hum Rts Q 400-402; Sen 2004 Philos Public Aff 315-318; Donnelly 2007 Hum Rts Q 281-283, 293-296.


granted? Do these entitlements warrant a classification or categorisation?

Taking the last question further, intellectual discourse on human rights has

developed numerous calibrations which in themselves do not really help in

providing answers to these questions. For example, drawing from the two

Covenants and the evolution beyond them, there are civil, political, social,

economic and cultural rights. They were further classified as "first

generation" and "second generation" rights. Then came the "third

generation" rights.7 Drawn from these same classes of rights are qualifiers

such as "fundamental rights";8 "moral rights";9 "natural rights",10 etc. In

another instance, human rights have been categorised as "important":

Shestack interrogates this classification by posing a simple (but simplistic)

question:

… [W]hen one–says a right is 'important' enough to be a human right, one may be speaking of one or more of the following qualities … intrinsic value … instrumental value … value to a scheme of rights … importance in not being outweighed by other considerations … importance as structural support for the system of the good life.11

Shestack's views certainly provide a rare philosophical insight into the

issues but they provide no answers to the recurrent questions on the

meaning and classification of human rights. If human rights are defined as

the entitlements that everyone has by virtue of being a human being, then

that highlights an individualistic approach. An individual (a human being)

possesses rights (entitlements). This at least pits such an individual against

the community (that must recognise, respect, protect and protect these

entitlements) in which he or she lives. Living in and within that community

also requires that the individual must accept that other individuals possess

entitlements which she or he must recognise and respect. It might be easy

to accept these premises, but the recurring question is on the content. What

is the content of these entitlements that an individual possesses? In other

words, when rights are defined as legal entitlements that an individual

possesses, what constitutes the substance or content of such entitlements?

When one attempts to find an answer to this question in the context of Africa

(and African civilisation as developed by different African societies over

time), one may quickly perceive and interpret Africa's uniqueness as

weirdness. But an understanding of African societies (their value systems,

institutions, practices and philosophies) from a holistic African point of view

7 See, for example, Saito 1996 U Miami Inter-Am L Rev 389; Algan 2004 Ankara L Rev

124-128. 8 Brest 1981 Yale LJ 1064. 9 Raz 1984 OJLS 123-129. 10 Donnelly 1982 Hum Rts Q 392-395. 11 Shestack 1998 Hum Rts Q 203.


reveals a civilisation that was built on its own pillars and ideas, making it

distinct from non-African societies. An insider’s perspective of Africa is

context-specific as it illuminates the then-and-now fluidity of the notion of

human rights lived in closely bonded African communities. This places the

African apart, at least in perception, from his Western counterpart. In the

Western world the individual is seen as an entity that lives in a community,

regulated by law and function as an individual. Homo Africanus (the African

man as opposed to his non-African counterpart) is the sum of his cultures

(practices, institutions, values and norms) and his bonding (social

interactions that are guided by his cultures). When attempting to define the

meaning of human rights, one is tempted to delve into the question posed

earlier: what constitutes these entitlements or human rights? What is at their

core? To the African man it is a complex question, given the kind of

civilisation in which he has been nurtured and to which he has been

exposed. Consequently, Homo Africanus' understanding and application of

what entitlements he may have are guided by the context in which he or she

operates and how it may affect others. Put simply, to the African, "rights"

are not defined from an individualistic perspective but by what duty he or

she owes to the greater community at large. Like most other parts of the

globe, Africa comprises peoples with diverse cultures, religious

backgrounds and beliefs, races, tribes, ethnicities, economic statuses and

political affiliations. These experiences define to a great extent the

perceptions individuals have of their communities, their relationships with

one another, and more importantly, what constitutes human rights in such

contexts.

The contentions on the meaning and content of human rights in the context

of African civilisations as they existed and continue to exist are informed by

the particularities of the African people as they have been shaped by the

sum of the norms and practices that influence their perception, reception

and practice of human rights. Africa's uniqueness, in terms of its

civilisations, must not be misrepresented as weirdness or abominations, for

to do that will mean African lifestyles are screened from an outsider

perspective, with an utter lack of understanding of the unique traits of

African societies. Ultimately, this leads to competing cultures, with one

depicting the other as inferior and second-class, while affirming or imposing

its superior status.

Without an iota of doubt, the human rights movement has given rise to a

clash of civilisations. Scholars from different backgrounds have contested

the origin of human rights, some arguing that the Western world takes credit

for their evolution. On the other hand, African scholars have challenged this


view. The origin of human rights, as argued below, remains a contested

issue which, obviously, is linked to the question of meaning itself.

3 The question of origin: some unfortunate misgivings

As pointed out in the foregoing discussion, the question of the meaning of

human rights is yet to be answered, especially as different epochs of human

history and civilisation should have contributed to its understanding.

Consensus thereon is far from being achieved. As controversies loom over

the meaning, they stretch to the origin as well. If we are unable to define

what the notion of human rights is, how then can we determine at what point

in human existence human rights originated?

In this regard, part of the African bias in the reception of the UDHR has been

shaped by the perception that it is a product of Western civilisation. Its origin

is tied to the West. Even if we ignored its origin, it has been perceived and

argued by many scholars, some of African descent, that the substantive

content of human rights reflects a Western civilisation and is therefore a

"misfit" for African civilisation or societies.12 Many scholars have contested

the universality of human rights, given the fact that each society obviously

presents unique features which may be supportive or challenging to the goal

of universality human rights.13 Africa is one such society. Mende debunks

this view, arguing that those who make such claims reject human rights in

order to justify, excuse or accommodate human rights abuses by claiming

that they are of an alien culture: a culture that is markedly different from

theirs. Secondly, the claim presupposes that everything about human rights

is western, thereby ignoring the priceless contributions of the non-western

world. Thirdly, the argument is used to validate inherent inequalities across

the globe, ranging from slavery and colonialism to the power dynamics in

different societies and the terrible race relations across the world.14

Like the content and classification of human rights, the origin is quite

important. Is it possible to pinpoint exactly when human beings began to

have entitlements? Secondly, at what point did human rights get infused

into social discourse? It might be challenging to answer these questions as

controversies surround the contents and classification of human rights. If

12 Motala 1988 Hastings Int'l & Comp L Rev 373, 378-383; Suri 2008 Cold War History;

Cerna 1994 Hum Rts Q 740, 744-751; Mayer 1993 Mich J Int'l L 309-320. 13 Motala 1988 Hastings Int'l & Comp L Rev 373, 378-383; Cerna 1994 Hum Rts Q 740,

744-751; Mayer 1993 Mich J Int'l L 309-320. 14 Mende 2019 J Int Political Theory 1-3.


human rights are defined as entitlements that human beings have, is it

logical to argue that early man had rights when he first appeared in Africa?

If the foregoing question is answered in the affirmative, then there is a need

to revisit the argument that human rights came to Africa from the West.

However, the emancipatory history of human rights has included many

significant developments, which comprise both legal texts and human

struggles. Unfortunately, legal scholars challenging human rights as a

western concept have been limited in their notion of the development of

human rights, and have also as confused human rights as a general concept

with international human rights as fostered by the UN in the aftermath of the

Second World War. Prior to the recognition of international human rights

(which has, undoubtedly been a source of controversies), major

developments had taken place within nations, as evidenced by the

enactment of texts that gave legal recognition to and protection to human

rights in those nations. For example, the English Magna Carta of 1215;15

the English Habeas Corpus Act of 1679;16 the English Bill of Rights of

1689;17 the US Declaration of Independence of 1776;18 the French

Déclaration des Droits de l'Homme et du Citoyen of 1789;19 and the United

States Bill of Rights (1789).20 These legislative pieces, unfortunately,

defined rights by excluding some specific categories of individuals such as

women, slaves and people in the non-Western world. In addition to these

texts and declarations were traditions that included enlightenment;

liberalism; Protestantism – all adding value to the evolution of human

rights.21

At the core of this debate is the unfortunate misprision of perceiving or

depicting human rights as a Western concept. That is not only incorrect and

fallacious but very misleading. In this context, it is argued that early man

had entitlements when he appeared in Africa. His entitlements, probably,

could have been to the natural environment in which he lived, as well as to

everything that was in that natural environment. He probably had rights to

his inventions as well. The evolution of society, from primitivity to civilisation,

would undoubtedly require legal prescripts to regulate human conduct. In

the same light, the definition of human rights might have been nuanced to

15 English Magna Carta, 1215. 16 English Habeas Corpus Act, 1679. 17 English Bill of Rights, 1689. 18 United States' Declaration of Independence, 1776. 19 French Déclaration des Droits de l’Homme et du Citoyen, 1789. 20 United States' Bill of Rights, 1789. 21 Mende 2019 J Int Political Theory 3-5.


capture such changes, and the resultant effect has been to define human

rights as those things that a human being is legally entitled to because he

or she is a human being. On the other hand, if the notion of international

human rights is taken broadly, starting with its evolution, then one can

logically argue that it was born of Western civilisation. Historical

developments preceding the birth of international human rights in 1948 do

not lend support to this argument. To corroborate this argument, the

language of the UDHR might be useful:

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people … .

The Preamble to the UDHR not only introspects on the link between a

"disregard and contempt for human rights" and the commission of

"barbarous acts which have outraged the conscience of mankind" but also

in prophetic form envisages a world in which all human beings shall live

freely. Although this is not made explicit in the Preamble, this evokes the

authors' graphic memories of the global conflagration that had just ended.

World War II stands out as the most recent colossal struggle and

development that had a direct consequence on the development of human

rights. But the War itself did not directly reflect human (speaking in general)

or European (with particularity) civilisation. Rather, it is argued that the War

was a manifestation not only of mankind's unbridled cruelty to mankind, but

of every monstrosity that mankind could ever conceive, however difficult to

imagine. Winston Churchill's speech delivered in the USA in the aftermath

of the commencement of the Second World War may help in painting a

partial image of the atrocities that ravaged Europe. As Churchill remarked,

the global community was in "the presence of a crime without a name".22

The details of the Second World War do not suggest that they are the

products of a civilisation. They reveal aspects of barbarism in Europe which

Churchill himself referred to as a "merciless butchery".23 The danger, it is

argued, has been to equate, even though mistakenly, barbarism with

civilisation. International human rights were born out of European

barbarism, not civilisation. These European monstrosities, as argued

herein, helped in the development and production of legal texts that granted

recognition to international human rights, introducing and infusing notions

such as universality in their entitlements, and interdependence and inter-

22 Churchill 1941 https://www.ibiblio.org/pha/timeline/410824awp.html. 23 Churchill 1941 https://www.ibiblio.org/pha/timeline/410824awp.html.


relatedness in their contents and realisation. These barbarities have been

common features of struggles across the globe, some of which include the

Armenian genocide, the numerous intra-European wars, the two World

Wars and the brutalities with which they were waged, the Holocaust, the

massacre of the native peoples of Americas, the segregation of black

people in America, the exclusion of women from voting, the mass atrocities

committed during wars of colonial conquest in Africa, the actions of the

Germans in Namibia, etc. Even in the so-called era of human rights,

colonialism would still continue on the African continent (and in some other

parts of the world), this being a form of apartheid supported by the same

leading global disciples of human rights. For the African continent, slavery

and the slave trade, followed by colonialism, constitute the worst and most

degrading forms of human treatment, the arrogation of superiority leading

to the assumption of a right to control independent human beings for

economic reasons, subjugating them to the status of second-class human

beings. With their unapologetic tone and attitude, their claim that they are

the proprietors and progenitors of human rights is not only fallacious and

ludicrous but also vitiates the credibility and intent of the entire movement.

These inhumanities, the remorseless degradation and dehumanisation of

human beings represent the greatest barbarism ever perpetrated by

mankind against mankind.

Ever since man appeared on African soil, Africans have fortunately built

their own traditions. They have had their own struggles. The aftermath of

these struggles has gone undocumented. The history of Africa has been

one of slavery and the slave trade, ancestral worship, reliance on the natural

environment for survival, occupation by and subjugation to colonials, and

the battle for the liberation of their territories. Each of these struggles was

tied to the fundamental and undeniable fact that they, as human beings,

have their dignity and worth, with entitlements conferred upon them by the

Creator, and that they are not to be reduced to servants to any other human

beings. If these struggles and their accomplishments were not chronicled,

this does not mean that their contributions must be discredited or go

unrecognised. The UDHR and subsequent instruments that were generated

were all aimed at recognising the entitlements human beings have: they did

not create these entitlements. The UDHR, in its Preamble, affirms the

undeniable link between rebellion and human rights. Years of injustice,

inequality, inhumanities, dehumanisation, segregation and apartness,

packaged as the right of some part of mankind to dominate other parts, gave

rise to the international recognition of human rights as a way of preventing

a relapse to the status quo ante. The view that international human rights


are a product of European civilisation is not only fallacious and misleading

but untenable and does not accord with the plethora of incontrovertible

evidence that exists.

4 The toxicity of the terrain: revisiting the unforgettable

legacy of slavery, the slave trade and colonialism and

their impact on human rights

A day before the adoption of the UDHR, the UN had adopted the UN

Convention on the Prevention and Punishment of the Crime of Genocide

(hereafter the Genocide Convention). Article 1 of the UDHR articulates one

of the most fundamental premises of international human rights: "All human

beings are born free and equal in dignity and rights. They are endowed with

reason and conscience and should act towards one another in a spirit of

brotherhood." Walking down memory lane, one makes some disturbing

findings: first, the adoption of the UDHR came eighty-three years after the

Americans had abolished slavery; a century after the French, and 141 years

after the English. Quite distinctive is the fact that the UDHR gave rise to the

notion of a "juridical humanity".24 Unfortunately, despite its being premised

on the universal entitlement of all human beings, colonialists like the British,

the French and the Belgians could not agree to the view that this was

applicable to colonial peoples and their territories. It seems that this

challenge confounded the perception, reception and universality of the

UDHR, as its powerlessness was felt in its inability to reach or be claimed

by either the colonials or the colonised peoples. Needless to say, at the time

of the adoption of the UDHR, European nations still maintained colonies,

especially on the African continent, most of which attained their

independence only in the 1960s, approximately twelve years after the

adoption of the UDHR.

But the inhumanity of colonisation, especially as it continued after 1948, was

hardly the focal point in European national politics. At the level of the UN,

its realisation of the cruelty of colonialism, in which juridical human beings

were still deprived of the worth and dignity premised in the UDHR, would

lead to the adoption of the Declaration on the Granting of Independence to

Colonial Countries and Peoples. Article 1 of the Declaration stipulates the

following:

The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of

24 Esmeir 2006 PMLA 1544.


the United Nations and is an impediment to the promotion of world peace and co-operation.

Article 1 not only describes what colonialism constitutes (the subjection of

peoples to alien subjugation, domination and exploitation) but further

characterises it as a "denial of fundamental human rights" which runs

contrary to the Charter of the UN. This link between colonialism and human

rights is quite apparent. However, and unfortunately, colonialism was not

the only systematic and widespread perpetration of gross human rights

violations against the African people. Its predecessor, slavery and the slave

trade, had similar ramifications for human rights. Like any persistent practice

across the globe, the slave trade had codes in place to regulate it. Every

nation in which this practice occurred had in place defined sets of laws, rules

and regulations which, amongst other things, defined the status of the slave,

the responsibility owed by the slave trader or owner to the slave, and the

conduct of the slave trade itself.

Even though they are explicit in themselves, it is important to reflect on some

of these laws. The French Code Noir was decreed by Louis XIV in 1685.25

In force until the dawn of the 1789 French Revolution, the Code Noir gave

slaves no rights. The only exception was the responsibility to feed and care

for the sick and old, which was shouldered by their master. The Code Noir

stipulated that26

… the slave who has struck his master in the face or has drawn blood, or has similarly struck the wife of his master, his mistress, or their children, shall be punished with death … .

Another clause, worrying and dehumanising, was as follows:27

The fugitive slave who has been on the run for one month from the day his master reported him to the police, shall have his ears cut off and shall be branded with a fleur de lys on one shoulder. If he commits the same infraction for another month, again counting from the day he is reported, he shall have his hamstring cut and be branded with a fleur de lys on the other shoulder. The third time, he shall be put to death.

The Code Noir also contained a troubling definition of what would constitute

punishment:28

The masters may also, when they believe that their slaves so deserve, chain them and have them beaten with rods or straps. They shall be forbidden

25 French Code Noir, 1685. 26 Article XXXIII of the Code Noir, 1685. 27 Article XXXVIII of the Code Noir, 1685. 28 Article XLII of the Code Noir, 1685.


however from torturing them or mutilating any limb, at the risk of having the slaves confiscated and having extraordinary charges brought against them.

That would mean that beating or chaining them with rods or straps did not

qualify as torture. And the penalty, if any slave was tortured or mutilated,

would be confiscation and the imposition of extraordinary charges.

A recollection of these detailed cruelties, re-ignited by a perusal of such

texts, breeds mental anguish and emotional pain rising from the realisation

of what a human being could do to another human being. The discussion of

such systemic abuses and cruelties often gets side-lined or trivialised and

the victims of these generational cruelties are often labelled as emotional

and irrational. Without discounting the fact that human beings who are

endowed with reason and good conscience are bound to be emotional,

these details question in every respect the bona fides of those who stand

as the moral paragons of the UDHR, who were once the architects and

perpetrators of these same inhumanities.

Over time, reflections on these barbarous crimes, combined with

developments on the international plane, have sparked discussions on the

issue of reparations. Earlier attempts at reparations for slavery featured the

"forty acres and a mule" plan propounded by General William Sherman at

the end of the Civil War., which was quickly reversed. Similarly, in the UK

the Church of England, which also owned slaves and plantations in the

Caribbean, seemed to have been the only institution that was willing to give

serious thought to the idea of reparations.

In 2001 Human Rights Watch, as a contribution to the debate on

reparations, remarked as follows:29

We begin with the premise that slavery, the slave trade, the most severe forms of racism associated with colonialism, and subsequent official racist practices such as Apartheid in South Africa or the Jim Crow laws in the United States are extraordinarily serious human rights violations. If committed today these would be crimes against humanity.

The remark, unfortunately, begets critic ism. In retrospect, would these

actions not only be tantamount to crimes against humanity and but be

genocide as well? Or do the legal characterisations thereof hinge on issues

of law? In other words, in the absence of a law that recognised and

protected human rights, these "violations" would not amount to any form of

illegality, immorality or inhumanity? As a point of departure, if human rights

29 Human Rights Watch 2001 https://www.hrw.org/news/2001/07/19/approach-

reparations.


are considered to be the entitlements someone gets based on the fact that

he or she is a human being, then such an a fortiori moral position also

compels us to think and conclude that slaves, like their masters and traders,

had rights. Yet they were deprived of these rights as a further extension of

the assumed racial superiority of another race, with the use of oppressive

and coercive measures. In the absence of any codified laws that gave,

recognised or protected the rights of slaves, such cruelties were unnatural

and immoral, and did not reflect the reason and good conscience endowed

upon every human being. Put simply, the slave trade and colonialism were

unnatural offences, immoral in content and illegal in operation.

Unlike the other countries in the northern hemisphere that took part in the

slave trade, France has officially accepted some responsibility for the role it

played in the slave trade.30 At a reception honouring the Slavery

Remembrance Committee on 10 May 2001, the then French president

Jacques Chirac described slavery as "a wound ... a tragedy ... an

abomination perpetrated by Europeans for several centuries, through an

unspeakable trade between Africa, the Americas and the islands of the

Indian Ocean".31

Slavery and colonialism shared so much in common. First, for the most part

the perpetrators were the same. Second, they were predominantly practised

by the West. Third, they share a common theoretical apparatus: the

imposition of dominance by a race that perceives itself as being superior on

another race perceived as inferior.

30 It is important to consider, in a comparative perspective, the manner in which Queen

Elizabeth referred to the slave trade during her address to the joint session of the Virginia assembly on the occasion of the commemoration of the 400th anniversary of Jamestown on 3 May 2007: Queen Elizabeth II 2007 http://www.americanrhetoric.com/speeches/queenelizabethvageneralassembly.htm. See also the former US President, Bill Clinton’s seeming or near-apology on 17 June 1997: Clinton 1997 https://edition.cnn.com/ALLPOLITICS/1997/06/17/clinton.race/. On the other hand, Former British Premier, Tony Blair, was categorical and unequivocal when he referred to slavery as one of history's most "shameful enterprises" (even though he failed to apologise for it): Blair 2007 http://news.bbc.co.uk/2/hi/uk_news/6493507.stm. Former Mayor of London, Ken Livingstone, did apologise for the role played by London in the slave trade. He referred to it as "a monstrous crime": Livingstone 2007 http://news.bbc.co.uk/2/hi/uk_news/england/london/6474617.stm.

31 Marlowe 2006 https://www.irishtimes.com/news/chirac-announces-slavery-memorial-

day-1.1008754.


5 Western indifference, hypocrisy and double standards

In regard to the goal of universalising international human rights, it is quite

unfortunate, vexing and disappointing to notice the conspicuous gaps and

disjunctures that have taken permanent residence between rhetoric and

reality. The actions and omissions of the West are not only dubious and in

furtherance of their national interests, but have the impact of diluting the

legitimacy of human rights. Looking at the attitudes of the Western nations,

one can argue that they clearly and unequivocally display a disconnection

between the aspirations expressed in international human rights

instruments and the reality. In realpolitik contexts, national interests have

overridden human rights concerns. The condemnation of human rights

abuses in the western world, irrespective of the scale, depends entirely on

what national interest will be furthered or compromised. Undoubtedly, the

western world has made human rights a political football on the international

plane, making it a fluid and dynamic concept with no clear underlying

principles in regard to their protection and promotion. The volatility of human

rights on the African continent has been brought about by its very politicking,

as gross violations may be completely ignored without any condemnation.

While this view may be very critical and pessimistic, a few examples are

probably worth mentioning, as they will support the argument. On the

African continent, documented cases of gross violations of human rights

serve as cogent and bullet-proof evidence of western hypocrisy, indifference

and double standards. The perpetration of apartheid in South Africa; the

genocide in Rwanda, and the grave humanitarian crisis in the Darfur,

Sudan, are a few examples that come to mind. One should consider the

case of Africa in the aftermath of the Second World War. The UN Charter,

in its Preamble, reaffirmed its "faith in fundamental human rights, in the

dignity and worth of the human person, in the equal rights of men and

women and of nations large and small". However, the innate ineffectiveness

of the UDHR would be reflected in the continued colonialism, during which

the people in the said colonies were still consigned to the repressive,

exclusive and brutal policies prescribed and implemented by people who

had invaded them and without consent occupied their land, and had since

then been involved in an unconscionable theft of the resources therein.

Looking at the experience, and appraising it from the aspirational standpoint

of the UDHR, in all fairness, one can argue that the contextual reality

experienced by Africans was an unbridgeable distance from the aspirations

of the UDHR and evidenced the inherent powerlessness of the UDHR itself.

The situation was aggravated by the conspicuous unwillingness of the same


colonial powers to at least grant recognition to these "subjects" as human

beings with legal entitlements in the new international legal order.

Beyond the adoption of the UDHR, numerous international human rights

instruments were developed partly for the purpose of furthering the

recognition of specific categories of rights (such as social, economic and

cultural rights, and civil and political rights), the prohibition of specific acts

such as discrimination, the criminalisation of torture, and contextual

definitions of the rights of vulnerable persons. Unfortunately, despite the

rhetoric that accompanied these developments, their crystallisation into

human rights instruments was not accompanied by the purest of intentions

and obligations from some western countries. Take for example the actions,

omissions and attitudes of the United States which, in all fairness, is the

leading proponent in the international human rights movement and the

foremost denouncer of human rights abuses. Even though the UDHR was

spearheaded by Eleanor Roosevelt, the then First Lady of the US, the US

played a very instrumental role in seeing to it that the UDHR did not succeed

in becoming a binding covenant. Subsequent human rights instruments

endured a vexing and dubious delay on the part of the US in ratifying them.

The 1965 Convention on the Elimination of All Forms of Racial

Discrimination was ratified only 29 years later (in 1994), and the ICCPR in

1992.32 The history of the ratifications discloses a disturbing trend: they

came with a very high price, with reservations, understandings and

declarations attached to the operation of these instruments in the US legal

system. The ICESCR is yet to be ratified by the USA. The United Nations

Convention on the Rights of the Child (hereafter the CRC) has not been

ratified by only two states across the world, one of which is the USA. A

similar pattern could be noted in regard to the United Nations Convention

on the Elimination of all Forms of Discrimination Against Women (hereafter

the CEDAW), which was signed in 1980, a year after its adoption, but has

to date not been ratified. In addition to the unwillingness to support or ratify

the UN instrument on racial discrimination, the United States and the United

Kingdom, obviously the two leading countries in advancing the universal

respect for, promotion and protection of human rights, were conspicuously

ambivalent in the 1980s on their positions regarding apartheid in South

Africa. Specifically, the Reagan and Thatcher administrations both followed

a policy of "constructive engagement" with the apartheid regime. They both

vetoed the imposition of UN economic sanctions on apartheid South Africa.

32 Upon ratification in 1992, the United States made five reservations, five

understandings and five declarations which, in effect, severely limit the applicability of the ICCPR in its domestic legal system.


They were motivated not by the gross inhumanities perpetrated by the

practice of apartheid, but rather by the economic considerations of free

trade and seeing South Africa as a major bastion against Marxist forces in

South Africa. Thatcher declared the African National Congress (ANC) a

terrorist organisation. Her spokesman, Bernard Ingham, in the late 1980s

expressed the opinion that anyone who believed that the ANC would ever

form a government in South Africa was "living in cloud cuckoo land".33

Nelson Mandela was also included in the US list of terrorists.34

Humanitarian crises that occurred in the former Yugoslavia, Rwanda and

Sierra Leone attracted unflinching commitments by the US to combat

impunity by holding the perpetrators thereof responsible. Through

international criminal justice mechanisms this objective was met with some

comparable degree of success. Unfortunately, the US has shown

unqualified opposition to the permanent International Criminal Court

(hereafter the ICC), as opposed to its European allies. In the early months

after the adoption of the Rome Statute of the International Criminal Court,

US opposition reached its peak in Congress as a representative declared it

"dead on arrival" at the US Congress.35 John Bolton, one of the most ardent

and unrepentant critics of the ICC, called it an illegitimate court that would

tamper with the constitutional rights of US citizens and make them yield to

foreign and international courts.36 If the US is true to its human rights creed,

and unequivocally believes that there should be accountability for human

rights violations, then the US, it is thought, should be amongst the leading

countries not only to establish such an institution but also to be part thereof.

Given the current state of affairs, that seems very aspirational and quite

distant from being realised. The US response to the genocide in Rwanda in

1994 was unfathomable. With Clinton barely over fifteen months in the

White House, as Rwanda slipped into an ethnic cleansing, Clinton instructed

his Secretary of State Madeleine Albright to refrain from using the word

"genocide". Rather, she would argue that Rwanda was undergoing a minor

ethnic tension which was resolvable. Before the conflict came to an end,

over half a million Rwandans had lost their lives. The Western powers,

33 The Ratcatcher 2013 https://www.politicsweb.co.za/news-and-analysis/fight-back of-

the-thatcher-cloud-cuckoo-land-misqu. 34 Elliott 2019 https://globalnews.ca/news/5201623/nelson-mandela-apartheid-terrorist-

south-africa/. 35 Senator JA Helmes, Jr, Chair of the Senate Relations Committee declared the Rome

Statute "dead on arrival" if the treaty did not grant the US veto power: see Crossette 1998 https://www.nytimes.com/1998/03/27/world/helms-vows-to-make-war-on-un-court.html.

36 Tamkin 2018 https://www.buzzfeednews.com/article/emilytamkin/bolton-911-icc-israel-afghanistan-dead-to-us.


which predominantly occupy the United Nations Security Council, displayed

indifference and unresponsiveness to the Rwandan mayhem. They were

unwilling to categorise the crisis as constituting a threat to world peace and

security. And there was a delay in recognising the need to deploy troops to

Rwanda to bring the conflict to an end. And then, in another sub-region of

the African continent, there was the civil war in Sierra Leone. What is

discernible in these crises (Rwanda and Sierra Leone in Africa, and as

compared to Kosovo in the former Yugoslavia) is that the concept of

humanitarian intervention itself is based on the national interests of the

western powers and not on the alleviation of human rights violations

occurring therein. When Sierra Leone slipped into a civil crisis, Nigeria, the

biggest African state in terms of military might and resources, committed to

neutralising and defeating the rebellious regime that had ousted the

democratically elected government. Nigeria undoubtedly introduced a new

model of what was meant by humanitarian intervention for the alleviation of

human rights abuses (both within national, regional and international human

rights law), marked by a swift use of military force. Despite the calls to the

western powers, no support was forthcoming from them, since they had no

interests to protect or further therein. Complemented by a handful of

Ghanaians, Malians and Guineans, Nigeria was able to marshal the

ECOWAS-coordinated operations that brought to an end a murderous

rebellious regime and reinstated the democratically elected government of

Ahmed Tejan Kabbah. Compared to the international response to the crisis

in the former When one compares this lack of support with the reaction to

the Yugoslavian crisis, one is justifiably embarrassed by the glaring disparity

in the humanitarian interventions affecting peoples in different parts of the

world. Like many other casualties of the inexplicable violence that plagues

African countries, the saddening images that should warrant immediate

international condemnation and action often fade from the world's

consciousness. In cases where humanitarian aid is considered, they are

deficient in energy and efficacy, leaving the affected refugees scrambling

for crumbs of mercy.

6 The corruption factor: the complicity of the West

A key challenge to realising the aspiration of universalising human rights

has been the corruption factor which resides as an invisible enemy amongst

African people. Defined as the use of public resources for private gain,

corruption on the African continent is perpetrated by, amongst others, senior

state officials who steal state-owned resources. These stolen resources and

assets are transferred surreptitiously to financial institutions in Western


countries where they are concealed. Clearly, the theft of state resources

affects the realisation of human rights. Borrowing from the language used

in Article 2(1) of the ICESCR, State Parties thereto are urged to

… take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Without doubt, the theft of state resources deprives such a state of the

resources needed for the realisation of human rights. For example, to

realise the right to healthcare, resources are needed to construct the

requisite infrastructure and to equip such facilities with the cutting-edge

tools needed for the investigation, diagnosis, treatment and prevention of

ailments. Resources are also needed for the maintenance of these

appliances as well as the acquisition of new ones. Resources are needed

to hire, train, remunerate and retain competent personnel in sufficient

numbers. The same applies to the right to education. In order to realise the

right to education, resources are needed for the construction of educational

establishments and the provision of amenities that foster the development

of the learners' intellect, abilities, physique and morale. The recruitment of

teachers also requires resources. When resources stolen by senior state

officials are received by western financial institutions, socio-economic

development is not only hijacked and derailed but further thwarts the

possibility of realising human rights. Foreign financial institutions, especially

those in the West, have become safe havens where stolen resources from

African states are kept. Data from credible sources reveal that the African

continent loses over USD 50 billion annually. Different sources reveal

stunning figures on the amount of monies stolen and transferred out of

Africa, putting it on a rough estimate of US$ 75 billion annually.37 Bearing in

mind the adverse effects of these stolen resources on the realisation of

socio-economic and political development and human rights, it is logical to

say that the west is complicit in the theft of these resources as well as in

diminishing the possibilities of realising human rights on the African

continent. The resource issue, in addition to their being stolen and

consigned to the West, also accounts for the numerous intra-state wars that

have plagued the African continent.

37 Hope 2020 Journal of Financial Crime 297-298.


7 Conclusion

Africa is currently beleaguered by internecine, sporadic and avoidable man-

made disasters emanating from irresponsible, toxic and unresponsive

political leadership that has abused the will of the people, deprived them of

their welfare and altered the purpose of government. Complicit in the

exploitation and underdevelopment of their respective communities, these

perpetrators of divisive politics have pitted segments of their people against

one another in a bid to further their political grip on power and, with the aid

of other political elites, have committed the theft of state resources,

depriving their people and states of the resources needed to pursue

development. Often, these acts are perpetrated with the complicity of

Western powers who would prefer to have in power leaders who further their

(Western) interests.

This situation is rendered more complex by the biases, hypocrisies and

indifference of the Western world, as Western states take a remote position

towards influencing the conduct of politics in Africa. Central to this is the

place of human rights in terms of recognition, enforcement and

implementation. As human rights have become side-lined by the continent’s

political actors in pursuit of their personal and national interests, Africans

have witnessed double-standard bearers who preach human rights but

practice human wrongs across the continent. If Africa is the hub of serious

crime in international law, this is largely because their perpetration on

African soil is given very minimal attention by the same institutions that are

supposed to prevent them. If we argue that the human race is the only race

created by God, and everyone in the human race possesses rights

irrespective of any differences they may have, then respect for human rights

as well as their enforcement can be meaningful and effective only if the

entire human race is committed to alleviating the plight of everyone else, no

matter where he or she is. Mankind must hold this solemn and sacrosanct

duty and obligation at the centre of its being, instead of making it a

chameleon-like entity that changes its appearances depending on the

context in which it is operating.

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List of Abbreviations

Ankara L Rev Ankara Law Review

CEDAW Convention on the Elimination of all Forms

of Discrimination Against Women

CRC Convention on the Rights of the Child

Hastings Int'l & Comp L Rev Hastings International and Comparative

Law Review

Hum Rts Q Human Rights Quarterly

ICCPR International Covenant on Civil and Political

Rights

ICESCR International Covenant on Economic, Social

and Cultural Rights

J Int Political Theory Journal of International Political Theory

Mich J Int'l L Michigan Journal of International Law

OJLS Oxford Journal of Legal Studies

Philos Public Aff Philosophy and Public Affairs

PMLA Journal of Modern Language Association

U Miami Inter-Am L Rev University of Miami Inter-American Law

Review

UDHR Universal Declaration of Human Rights

UN United Nations

Yale LJ Yale Law Journal

70 years after the udhr: a provocative reflection aa agbor

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